This is a civil action by the plaintiff, Hygrade Food Products
Corporation (Hygrade), under Section 16(2) of the Interstate
Commerce Act (the Act), 49 U.S.C. § 16(2), to enforce a
reparation order of the Interstate Commerce Commission (the
Commission). Based upon a decision by the Commission in Hygrade
Food Products Corporation v. Atlantic Coast Line R., 318 I.C.C.
501 (1962), the order was entered on May 27, 1963.

This action also involves a cross-complaint authorized by
28 U.S.C. § 1336, 49 U.S.C. § 17(9), and Interstate Commerce
Commission v. Atlantic Coast Line R. Co., 383 U.S. 576, 86 S.Ct.
1000, 16 L.Ed. 2d 109 (1966), filed by the defendants against the
United States and the Interstate Commerce Commission to set aside
the order of the Commission awarding reparation to Hygrade.
Hygrade intervened as a party defendant to the cross-complaint.

The scope of judicial review is determined by whether the issue
presented
for review was within the primary jurisdiction of the Commission.
I.C.C. v. Atlantic Coast Line R. Co., 383 U.S. 576, 579-580, 594,
86 S.Ct. 1000, 16 L.Ed.2d 109 (1966). Here the Commission
determined that the commodity rates found in the Southern Freight
Association tariff from Evansville, Indiana, to the destinations
applied to the shipments in question. The propriety of this
determination is the sole question presented for review. In
reaching this determination, the Commission merely construed the
provisions of the Southern Freight Association tariff. This
question does not raise "issues of transportation policy which
ought to be considered by the Commission in the interests of a
uniform and expert administration of the regulatory scheme laid
down by" the Interstate Commerce Act, see United States v.
Western Pacific R. Co., 352 U.S. 59 at 65, 77 S.Ct. 161, 1
L.Ed.2d 126 (1956); nor is "the inquiry * * * essentially one of
fact and of discretion in technical matters, * * *", see Great
Northern R. Co. v. Merchants Elevator Co., 259 U.S. 285, 291, 42
S.Ct. 477, 479, 66 L.Ed. 943 (1922) (emphasis supplied). The
principal issue involved here, whether the determination by the
Commission to apply the commodity tariff to these shipments by
virtue of the intermediate rule found in the tariff was an
unlawful construction of that tariff, is not beyond the
understanding of the Court unassisted by expert guidance. Its
resolution does not depend upon evaluation of "voluminous and
conflicting evidence" that can only be accomplished by expert
knowledge of the transportation industry. See Great Northern R.
Co. v. Merchants Elevator Co., supra, 259 U.S. at 291, 42 S.Ct.
477, 66 L.Ed. 943; National Van Lines, Inc. v. United States,
355 F.2d 326 (7th Cir. 1966). Thus, the determination of the
Commission is solely a question of tariff construction, and hence
one of law. Great Northern R. Co. v. Merchants Elevator Co.,
supra; United States v. Western Pacific R. Co., supra; Armour &
Co. v. Chicago, M., St. P. & Pac. R. Co., 188 F.2d 603, 608 (7th
Cir. 1951); I.C.C. v. Atlantic Coast Line R. Co., supra; National
Van Lines, Inc. v. United States, supra.

The tariffs here involved do not admit of facile comprehension
and construction. Indeed, the degree of effort required to
understand the tariffs and their proper application in light of
the applicable legal principles of tariff construction might well
argue in favor of adopting a more limited scope of judicial
review than has heretofore been prescribed for cases of this
nature. See Associated Grocers of Colorado, Inc. v. Atchison, T.
& S.F. Ry. Co., 191 F. Supp. 435 (D.Col. 1961). But the Court may
not abdicate the responsibility that is rightfully lodged with it
to insure that the Commission construes tariffs in accord with
the law merely because the question of construction is
painstakingly difficult to resolve. The Court, therefore, in the
exercise of its independent judicial function has reviewed the
tariffs in question in light of applicable legal principles of
tariff construction. The Court has concluded that the order of
the Commission must be set aside and its enforcement enjoined. To
reach this determination, it was necessary for the Court in
construing the tariffs to resolve only two questions: (1) May the
intermediate rule of the Southern Freight Association tariff be
applied to shipments originating at points other than those in
Kentucky or at Ohio River crossings? and (2) If it may, did the
Commission properly apply the intermediate rule?

II. Construction of the Tariff.

A. Is the Commodity Tariff Restricted to Kentucky and Ohio River
Crossings?

The route employed to justify the application of an
intermediate rule cannot under any circumstances be unreasonable.
Whether the route is unreasonable will be determined by the
extent and direction of the circuity and commercial usage of the
route. A.E. West Petroleum Co. v. Atchison, T. & S.F.
Ry. Co., 212 F.2d 812 (8th Cir. 1954). Thus we must determine
whether, to enable the commodity tariff to embrace these
shipments, the Commission applied the intermediate rule to an
unreasonable route.

To justify its application of the intermediate rule, the
Commission relied on two facts: (1) the commodity tariff
contained maximum circuity limits within which the constructed
route fell; and (2) to conclude otherwise would restrict the
originating carrier, the NYC, to a mere switching movement at
Evansville.

The question posed is whether the maximum circuity limits
contained in the tariff may be used to avoid the application of
the principles announced in West to this situation. Here the
record stands undisputed that there is no commercial usage of any
kind of the constructed route, and indeed, that a shorter, though
still circuitous, route exists from Evansville through
Washington, Indiana, thence to Cincinnati and the destinations.
Here the extent of the average circuity of the constructed route
is 35% to 47%, depending upon whether the carriers' or the
shippers' figures are used. For reasons stated below, the extent
of circuity is not determinative of the issue.

A tariff must be construed to avoid unjust, absurd, or
improbable results. National Van Lines, Inc. v. United States,
supra, 355 F.2d at 332; A.E. West Petroleum Co. v. Atchison, T. &
S.F. Ry. Co., supra, 212 F.2d at 816. Strict construction of the
tariffs against the carriers that drafted them is not justified
when such a construction would ignore a permissible and
reasonable construction which conforms to the intentions of the
framers of the tariff. National Van Lines, Inc. v. United States,
supra, 355 F.2d at 333.

West establishes beyond doubt that a route constructed for
application of an intermediate route must be reasonable in light
of three equally important factors: (1) the extent and (2) the
direction of circuity and (3) the commercial usage of a route. In
West, there was no commercial usage of the route there
condemned, and the route involved a back-haul with circuity of
35% to 62%. In the case most closely analogous to the instant
case where an intermediate rule relating to point of origin was
applied, the intermediate point of origin was found to be
"directly intermediate over reasonably direct and regularly used
routes embracing the routes of movement * * *." Armour & Co. v.
Chicago, B. & Q.R. Co., 215 I.C.C. 537, 540 (1936). And the
Courts have affirmed the Commission's refusal to apply an
intermediate rule where circuity of 22.5% and no commercial usage
existed. United States v. Interstate Commerce Commission,
153 F. Supp. 741 (D. Col. 1956).

It may be that the maximum circuity limitation in the commodity
tariff satisfied the West requirement that the extent and
direction of the circuity be reasonable. Where the carriers
themselves establish a maximum limit of circuity, a route less
circuitous than the maximum will be considered reasonable. The
maximum circuity limitation may not, however, be used to defeat
the remaining element to be considered in determining the
reasonableness of a route. Here, like West, there was no
commercial usage of the constructed route. In light of the
evidence before the Commission on the absence of commercial
usage, the Commission's determination that the constructed route
was nevertheless reasonable was arbitrary and unsupported by
sufficient evidence.

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